Citation Nr: 0008672
Decision Date: 03/31/00 Archive Date: 04/04/00
DOCKET NO. 97-27 115 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for
bilateral vision loss.
REPRESENTATION
Appellant represented by: Joseph E. Ford, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher J. Gearin, Associate Counsel
INTRODUCTION
The veteran had active service from July 1940 to December
1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Nashville,
Tennessee.
FINDINGS OF FACT
1. In October 1969, the Board denied service connection for
bilateral vision loss.
2. Evidence received since the October 1969 Board decision
is so significant that it must be considered in order to
fairly decide the merits of the claim.
3. The claim of entitlement to service connection for
bilateral vision loss is supported by cognizable evidence
demonstrating that the claim is plausible or capable of
substantiation.
CONCLUSIONS OF LAW
1. The October 1969 Board decision, which denied service
connection for bilateral vision loss, is final. 38 U.S.C.A.
§ 7104 (West 1991).
2. The evidence received since the October 1969 Board
decision is new and material, and the veteran's claim is
reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156
(1999).
3. The claim of entitlement to service connection for
bilateral vision loss is well grounded. 38 U.S.C.A. § 5107
(West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Once a Board decision becomes final under 38 U.S.C.A. §§
7104(b), "the Board does not have jurisdiction to consider
[the previously adjudicated claim] unless new and material
evidence is presented, and before the Board may reopen such a
claim, it must so find." Barnett v. Brown, 83 F.3d 1380,
1383 (Fed. Cir. 1996).
In October 1969, the Board denied entitlement to service
connection for loss of vision in both eyes. The Board
concluded that macular degeneration of the right and left
eyes, with resulting loss of vision, was not related to the
service injury to the right eye or otherwise incurred in or
aggravated during active service; and that the diagnosed
myopic astigmatism was in the nature of a developmental
disorder, not recognized as a disability resulting from
injury or disease for the purpose of service connection.
Further, the Board concluded that the diagnosed myopic
astigmatism was not shown to be aggravated by service. That
decision is final. See 38 U.S.C.A. § 7104(a).
New and material evidence means evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with the evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a); See
also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (the
evidence must merely "contribute to a more complete picture
of the circumstances surrounding the origin of the veteran's
injury or disability, even where it will not eventually
convince the Board to alter its rating decision"). Further,
when determining whether the claim should be reopened, the
credibility of the newly submitted evidence is to be
presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
In a case like this, VA must first determine whether the
appellant has presented new and material evidence under
38 C.F.R. § 3.156(a) in order to have a claim reopened under
38 U.S.C.A. § 5108. Winters v. West, 12 Vet. App. 203
(1999). If new and material evidence has been presented,
immediately upon reopening the claim VA must determine
whether, based upon all the evidence of record in support of
the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a).
If the claim is well grounded, VA may then proceed to
evaluate the merits of the claim but only after ensuring that
his duty to assist under 38 U.S.C.A. § 5107(b) has been
filled. Id.
Available to the Board in October 1969 were the appellant's
service medical records, post-service private and VA medical
records, a September 1969 independent medical examiner's
report from the University of Texas Medical School; a
transcript of a June 1969 hearing before the Board; and
statements provided by the veteran and his military buddies.
The veteran's July 1940 enlistment examination report
disclosed vision of 200/100 bilaterally, corrected to 20/30.
From July 1941 to March 1942, he was treated on several
occasions because of refractive error of vision and
associated complaints. By history, it was noted that he had
had poor vision and pain in the eyes since childhood; had
worn glasses since he was eight years old. The veteran also
reported that he had had defective vision and pain in his
eyes since childhood.
In September 1941, the veteran broke his glasses. Several
days later, he was transferred from the dispensary to the
station hospital at Ft. Bragg, North Carolina because of poor
vision. He was diagnosed with severe, bilateral, compound
myopic astigmatism, the cause of which was undetermined. The
corrected vision was measured as 20/60 bilaterally. The
service examiner noted that this condition existed prior to
service.
According to a service clinical record, the veteran was
admitted in September 1941. According to the examiner's
notes, the veteran reported that he had had poor eyesight all
his life. He read by oil lamps while growing up, and he wore
his first pair of glasses at age eight. He recalled that he
began having headaches in 1934.
In October 1941, a Disposition Board at Fort Bragg found that
the veteran was unable to perform duties of a soldier as a
result of his poor vision. The Board recommended that he be
held for a Certificate of Disability for Discharge (CDD)
board.
In January 1942, he was diagnosed with the same condition.
His uncorrected vision was 20/200 on the right and 20/100 on
the left. The corrected vision was 20/60 bilaterally.
In February 1942, the veteran was diagnosed with essentially
the same condition except that his uncorrected vision was
20/300 bilaterally, corrected to 20/80 bilaterally. The
examiner noted that the bilateral, compound, myopic
astigmatism and poor eyesight existed prior to service.
The Chief of Surgical Service at Ft. Bragg, in a February
1942 memorandum to the veteran's commanding officer,
recommended that he be reclassified due to poor eyesight. It
was noted that the veteran was admitted to the hospital in
early February 1942. The Ear, Nose, and Throat (EENT) Clinic
observed him for several days. His vision was measured at
20/300 bilaterally, correctable to 20/80 bilaterally with
glasses. The diagnosis was moderately severe, bilateral
myopic astigmatism. The cause was undetermined. It was
opined that the veteran, without glasses, would be a
liability in active field service, and that he was unable to
see a target with or without his glasses in ordinary target
practice.
In March 1942 he was treated for severe headaches and burning
eyes.
In January 1944, during hospitalization for a condition not
in issue, the veteran complained of throbbing pain in the
right eye since the previous February, when he sustained a
black eye, but "was not hospitalized." The black eye was
apparently due to a rifle butt hitting him. Examination
revealed vision of 20/200, corrected to 20/40 bilaterally,
and an ophthalmologist commented that there was no evident
reason for ocular pain. New glasses were issued. The
subsequent records, to include his discharge report were
negative for an injury to his right eye.
In October 1944, the veteran was fitted for a new pair of
glasses because he broke his old ones.
His December 1945 separation examination report indicates
that his uncorrected eyesight was 20/200 bilaterally,
corrected to 20/40 on the right and 20/50 on the left.
In May 1952, G.W. Nairn, M.D., reported that he treated the
veteran in October 1949. At that time he found that the
veteran's uncorrected vision to be light projection only in
the right eye and 20/140 in the left. With best correction,
Dr. Nairn was able to give him light projection in the right
eye and 20/40 in the left. The ophthalmoscopic examination
showed the retina to be torn and there was a large area of
degeneration located centrally over the macula of the right
eye. Dr. Nairn speculated that this might have been due to
trauma, or that it could be a typical macular degeneration.
The doctor finished by noted that the veteran's vision in May
1952 was essentially the same as in October 1949.
Donald MacDuffie, M.D., informed the RO in July 1952 that he
had treated the veteran in August 1939 and July 1940. The
corrected visual acuity of each eye was 20/70.
In March 1965, Leo Murphy, M.D., informed the RO that the
veteran had sustained a cystic degeneration of the macula
with secondary retinal hemorrhage in the left eye beginning
in February 1965. The vision in the left eye was permanently
reduced to 20/100 with an absolute central scotoma. The
visual acuity in the right eye was finger counting at three
feet. No mention was made of a retinal tear in either eye.
VA examined the veteran in April 1965. His uncorrected
visual acuity was 1/200 in the right eye and 5/200 in the
left. The ophthalmoscopic examination revealed that the
fundi-optic discs were distinct in outline with some pallor;
extensive areas of chorio-retinal degeneration in the right
eye involving the macula and some choroidal vessels were
visible. The left eye revealed early degenerative changes
involving the retina and choroid appeared smaller, surrounded
by pigmented ring, and involving the macular area.
VA examined the veteran in July 1966. His uncorrected visual
acuity was of light perception in each eye. The
ophthalmoscopic examination revealed that the macular
degeneration of the retina and what appeared to be chorio-
retinitis.
In early 1967, the RO received three buddy statements. They
confirmed that the veteran injured his right eye sometime
around March 1943 when they were at the shooting range. They
each recalled that his right eye was injured; that his
glasses were broken; and that he was taken to the hospital.
In June 1969, the veteran appeared before the Board. He
testified that he had worn glasses since childhood and had
never had an eye injury prior to the one in service. He
described the circumstances of his in-service right eye
injury in considerable detail. He recalled that he had first
realized that the vision in the right eye was impaired when
he went hunting in 1947. He could not see with his right
eye. He reported that his left eye disorder began around
February 1965.
In September 1969, the Board obtained an independent medical
examination (IME) from a physician at the University of Texas
Medical School. The physician, after reviewed the veteran's
entire claims file and, in a detailed report, diagnosed the
veteran with 1) compound, myopic, astigmatism; 2) myopic
degeneration of the maculae and choroid of both eyes; and 3)
legal blindness secondary to diagnosis number two.
In explaining his findings, the IME physician elaborated that
myopic degenerative changes at the macula were
characteristic, common, and incapacitating. It generally
would begin as a diffuse pigmentation. Hemorrhages might
sometimes be extensive and multiple. Eventually large areas
of atrophy might appear with considerable proliferation of
pigment that may give the appearance of chorio-retinitis,
although no inflammation may have occurred. The process was
degenerative. It might occur in myopes that were extremely
high and in individuals that were no more myopic than the
veteran. It might or might not be familial, and it might be
bilateral. He concluded that in his opinion the conditions
in each eye were the same, although they varied in time of
onset. He agreed with an earlier opinion the, if the
disorder of the right eye were due to trauma to the macula or
choroid, it would have been immediately apparent. The
recorded corrected visual acuity in the right eye upon
discharge from the service, some time from the alleged
injury, was good. Dr. Nairn did mention a tear in the
retina, which was never mentioned in subsequent examination
reports. Likewise, there was no mention of a retinal
detachment that might have been due to a tear. The IME
examiner concluded that Dr. Nairn's observation was
incorrect, and he might have assumed the appearance of a
tear. The IME examiner added that there was no other likely
etiology of the condition described in each eye other than
myopic degeneration of the macula.
Furthermore, the IME examiner opined that the left eye
disorder was not secondary to the disorder of the right eye.
The record suggested that the degeneration of the left eye
was "sympathetic" to the condition of the right eye. The IME
examiner assumed that an erroneous assumption had been made
that the condition might have been sympathetic ophthalmia.
Sympathetic ophthalmia was usually due to lacerations of the
globe involving the ciliary body. The condition occurred in
a fraction of one percent of all cases of injury. In
extremely rare instances, contusion of the globe had caused
sympathetic ophthalmia, however, he emphasized that the
condition described in this veteran's eyes "in no way"
resembled the findings in sympathetic ophthalmia, which was a
smoldering inflammation involving all of the uveal tract
including the iris, ciliary body, and choroid.
Evidence received since the Board's October 1969 decision
includes a March 1966 statement from Dr. Murphy; a November
1966 report from Stewart M. Wolff, M.D.; a February 1999
medical opinion from Jeffrey Jessup, O.D.; a transcript of
the veteran's hearing testimony in 1999 and 2000; VA medical
records from 1996; and written statements provided by the
veteran.
In his February 1999 report, Dr. Jessup revealed that he
examined the veteran in January 1999. He noted by history
that the veteran injured his right eye in 1943 when a rifle
recoiled and shattered a spectacle lens and caused
lacerations to the eye and adnexa. Dr. Jessup observed that
the posterior poles of both eyes were obliterated,
peripapillary atrophy in both eyes, and scattered punched out
retinal lesions peripherally in both eyes. In summary, Dr.
Jessup concluded that the veteran was functionally blind in
both eyes, the right as a result of the inservice injury he
sustained, with both eyes now affected by cataracts and age-
related macular degeneration.
In January 2000, the veteran appeared before the undersigned.
He testified that in 1943 he injured his eye while stationed
in Ft. Thomas, Kentucky. He was on a rifle range that was
apparently located on an island in the middle of the Ohio
River. The Ohio River flooded and he and others were
marooned on an island. Rifle recoil caused the injury. The
recoil fractured his glasses causing glass fragments to cut
his right eye. His eye bled, although the service medical
records do not reflect this. He could not recall the exact
date, although he believed it was in March because it was
raining and the river was at flood stage. He was
hospitalized for several days at Fort Thomas. He was with
Company D at that time. He does not recall if they operated
on his right eye at that time. Soon after he was transferred
to Camp Custer, Michigan. He did not recall receiving
treatment for his eyes while stationed there. He contends
that he strained his left eye by compensating for his injured
right eye. He contends that his service records are not
complete because there is a discrepancy in his serial number.
He also maintained that his commanding officer was a poor
record keeper and may have lost the medical records of his
eye injury.
The veteran's written statements essentially echoed his
January 1999 testimony.
After carefully considering the evidence submitted since the
last final RO decision, in light of evidence previously
available, the Board finds that new and material evidence has
been presented. In this regard, the Board notes that with
the exception of Dr. Jessup's opinion, none of the evidence
is material because the evidence does not credibly relate the
veteran's current vision loss to service. As such this
evidence may not serve as a predicate to reopening the claim.
With respect to Dr. Jessup's opinion, however, his diagnosis
relating the current vision loss in the right eye to the
injury described in service is sufficient to reopen this
claim. In this regard, the Board previously accepted as
fact, in the October 1969 decision, that he injured his right
eye on the target range while in service, based on the
statements provided by the veteran and his military buddies.
This evidence, when combined with Dr. Jessup's opinion,
convinces the Board that new and material evidence has been
submitted. Accordingly, the claim is reopened.
The Board now turns to whether the claim is well grounded,
and as Dr. Jessup links the appellant's vision loss to
service, the Board finds that the claim is plausible, and
hence, well grounded. 38 U.S.C.A. § 5107.
ORDER
New and material evidence having been submitted, the claim of
entitlement to service connection for bilateral vision loss
is reopened.
The claim of entitlement to service connection for bilateral
vision loss is well grounded.
REMAND
In light of the foregoing findings, the Board believes that
this case warrants review by a board certified
ophthalmologist. Therefore, this case is REMANDED for the
following action:
1. The RO should request that the
veteran identify the names, addresses,
and approximate dates of treatment for
all health care providers who may possess
additional records pertinent to his claim
since February 1999. After securing any
necessary authorization from the veteran,
the RO should attempt to obtain copies of
those treatment records identified that
have not been previously secured.
2. Thereafter, the RO must refer the
veteran's claims folders to a VA board
certified ophthalmologist. Following
his/her review, the ophthalmologist must
offer an opinion whether it is at least
as likely as not that the veteran's right
eye disorder is related to service. The
examiner should also offer an opinion
whether it is at least as likely as not
that the right eye disorder caused or
aggravated a disorder involving the left
eye. A complete written rationale for
any opinion expressed must be provided.
A discussion of the opinions offered by
the IME in September 1969 and Dr. Jessup
must be included in the report. The
report should be typed.
3. After the requested development has
been completed, the RO should review the
report to ensure that it is in complete
compliance with the directives of this
REMAND. If the report is deficient in
any manner, the RO must implement
corrective procedures at once.
If the benefit sought is not granted, the veteran and his
representative should be furnished with a supplemental
statement of the case and provided an opportunity to respond.
The case should then be returned to the Board for further
appellate consideration. By this action, the Board intimates
no opinion, legal or factual, as to the ultimate disposition
warranted.
The veteran need take no action until otherwise notified, but
he and/or his representative may furnish additional evidence
and argument while the case is in remand status. Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992).
DEREK R. BROWN
Member, Board of Veterans' Appeals
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